NeighborFavor Inc. v. leed johnny
Claim Number: FA2005001897133
Complainant is NeighborFavor Inc. (“Complainant”), represented by Giulio E. Yaquinto of Pirkey Barber PLLC, United States. Respondent is leed johnny (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <favordelivert.com>, <favordeliveru.com>, <favordellivery.com>, <favordeluvery.com>, <favordelibery.com>, <favorfelivery.com>, and <favorselivery.com>, registered with Alibaba Cloud Computing (Beijing) Co., Ltd.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint in English to the Forum electronically on May 20, 2020; the Forum received payment on May 20, 2020.
On May 21, 2020, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <favordelivert.com>, <favordeliveru.com>, <favordellivery.com>, <favordeluvery.com>, <favordelibery.com>, <favorfelivery.com>, and <favorselivery.com> domain names are registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the names. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) Co., Ltd. registration agreement, which is in Chinese, and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 21, 2020, upon being notified by the Forum of deficiencies in the Complaint, Complainant submitted an Amended Complaint to the Forum electronically in both English and Chinese.
On May 26, 2020, the Forum served the Amended Complaint in both English and Chinese and all Annexes, including a Written Notice of the Complaint in both English and Chinese, setting a deadline of June 15, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@favordelivert.com, postmaster@favordeliveru.com, postmaster@favordellivery.com, postmaster@favordeluvery.com, postmaster@favordelibery.com, postmaster@favorfelivery.com, postmaster@favorselivery.com. Also on May 26, 2020, the Written Notice of the Complaint in both English and Chinese, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
On June 22, 2020, having received no response from Respondent, the Forum transmitted to the parties, in English and Chinese, a Notification of Respondent Default and, pursuant to Complainant's request to have the dispute decided by a single-member Panel, appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant, NeighborFavor Inc., offers on demand delivery services through the Internet and apps. Complainant has rights in the FAVOR mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”). Respondent’s <favordelivert.com>, <favordeliveru.com>, <favordellivery.com>, <favordeluvery.com>, <favordelibery.com>, <favorfelivery.com>, and <favorselivery.com> domain names are confusingly similar to Complainant’s FAVOR mark.
Respondent has no rights or legitimate interests in the domain names. Respondent is not commonly known by the domain names, nor has Complainant authorized or licensed Respondent to use the FAVOR mark in any manner. Respondent’s use of the domain names does not amount to a bona fide offering of goods or services nor a legitimate noncommercial or fair use. All the domain names host parked pages with pay-per-click links with the same five captions: “Food Delivery Services”; “Meal Delivery Services”; Restaurant Delivery Services”; “Grocery Delivery”; and “Food Delivery Menu”, all being services offered by Complainant. Some of those links in turn resolve to websites of Complainant’s competitors.
Respondent registered and is using the domain names in bad faith. Respondent has engaged in a pattern of bad faith registrations. Respondent attempts to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark. Respondent’s pattern of registering multiple domains incorporating Complainant’s mark and a clearly intentional misspelling of “delivery” is not a coincidence. Respondent is therefore engaging in cybersquatting /typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
Preliminary issue: Language of the Proceeding
Paragraph 11(a) of the Rules provides:
"[u]nless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding".
Paragraph 10(c) of the Rules provides that "[T]he Panel shall ensure that the administrative proceeding takes place with due expedition."
The Registration Agreement in this case is in Chinese. All Respondent’s domain names comprise English words, albeit with mis-spellings, and resolve to web pages in the English language. Respondent was notified in both English and Chinese by the Forum of the nature and deadlines pertaining to the proceeding and has failed to submit a Response. In keeping with the Policy aim of facilitating a relatively time and cost-efficient procedure for the resolution of domain name disputes, the Panel accordingly determines that it would be appropriate for English to be the language of the proceeding.
Substantive issues
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences as it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has shown that it has rights in the FAVOR mark based upon its registration of that mark with the USPTO (e.g. Reg. No. 4,424,908 registered October 29, 2013).
Each of Respondent’s <favordelivert.com>, <favordeliveru.com>, <favordellivery.com>, <favordeluvery.com>, <favordelibery.com>, <favorfelivery.com>, and <favorselivery.com> domain names is confusingly similar to Complainant’s FAVOR mark, as they all incorporate that mark in its entirety. The additional descriptive word “delivery” in a variety of misspelled forms does nothing to detract from the distinctiveness of the mark. The inconsequential “.com” generic top-level domain (“gTLD”) may be disregarded.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain names or a name corresponding to the domain names in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain names, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain names, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain names on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show that it does have rights or legitimate interests in the domain names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). The Respondent has made no attempt to do so.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the domain names. Complainant has established this element.
This element requires Complainant to establish, on the balance of probability, that Respondent both registered the domain names in bad faith and is using them in bad faith.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain names in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain names, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
Complainant has established this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <favordelivert.com>, <favordeliveru.com>, <favordellivery.com>, <favordeluvery.com>, <favordelibery.com>, <favorfelivery.com>, and <favorselivery.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: June 25, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page